Ins and Outs of Recusal

May 29, 2019 § Leave a comment

There comes a time in every lawyer’s life when you have no choice but to file a motion for the judge to recuse.

Most recusal situations are pretty clear, but not all are. It’s awkward at best to suggest that the judge should not be hearing your case, particularly where you are insinuating that ethical challenges may be involved. So you want to do it right if you’re going to do it at all. Here is some information that might help you get it right.

There are two categories of situations giving rise to consideration of recusal.

The first category consists of situations where the judge is per se disqualified and recusal is required unless waived by the parties. The bases for disqualification per se are set out in the Mississippi Constitution and the Mississippi Code.

The second category consists of situations in which grounds for disqualification per se are not present, but the judge’s impartiality might be questioned by a reasonable person knowing all of the pertinent facts. These are spelled out in Miss. Code of Judicial Conduct, Canon 3E.

Category One: Per Se Disqualification

Mississippi Constitution Article 6, § 165 states: “No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.”

Mississippi Code Ann. § 9-1-11 sets forth the same bases for recusal as provided in the constitution and adds the ground that the judge was previously counsel in the same proceeding.

The key to category one is that the judge is actually disqualified from sitting in the case. Recusal is mandatory unless the parties and the judge agree otherwise, or, as some people put it, they agree to waive the disqualification.

Category Two: Discretionary Recusal

The second category of recusal matters is found in the Mississippi Code of Judicial Conduct in Canon 3. In contrast with the Constitution and statutory mandatory recusal, all of the Mississippi Code of Judicial Conduct bases for recusal are hortatory; the Code recites that the judge “should” recuse in the listed circumstances if they apply.

Canon 3E(1) states the general principle: “Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where … ” The provision continues with several specific categories of situations that may require recusal. This is the general principle behind all recusal motions. Note the word should above. Again, in these situations recusal is discretionary and is reviewed on appeal for abuse of discretion.

The specific situations spelled out to complete the above provision are:

3E(1)(a). The judge has a personal bias toward a party or has personal knowledge of disputed evidentiary facts.

The Mississippi Supreme Court has stated that, “In the absence of a judge expressing a bias or prejudice toward a party or proof in the record of such bias or prejudice, a judge should not recuse himself.” Bateman v. Gray, 963 So.2d 1284, 1291 (Miss. 2007). The burden, which is a heavy one, is on the movant to prove facts sufficient to establish disqualifying bias or prejudice.” Hodnett v. State, 787 So.2d 670 (Miss. Ct. App. 2001).

What about a bad outcome? Some clients thing the judge is prejudiced against them because of an adverse ruling. Our appellate courts have recognized that “[O]ne party’s irritation at the trial judge’s ruling against him is not grounds to force the judge to recuse himself.” Clay v. State, 829 So.2d 676, 687 (Miss. Ct. App. 2002). “Prior rulings by a judge in the proceeding will almost never be sufficient to justify recusal.” Campbell and Jackson, Commentary on Judicial Ethics in Mississippi, § 6: 9 (2010). The United States Supreme Court addressed the principle in the case of Liteky v. U.S., 510 U.S. 540, 555 (1994):

“ … opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings , or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”

In Rogers v. Morin, 791 So. 2d 815, 821 (¶13) (Miss. 2001), the court held that a chancellor was not required to recuse after he remarked in a hearing that he believed that the appellant had no credibility. Weighing credibility is, after all, what chancellors do. If we were required to recuse every time we made that determination, there would be chaos.

3E(1)(a). The judge or a lawyer with whom she previously practiced served as a lawyer or is a witness in the matter in controversy, or .

3E(1)(b). A lawyer as attorney or witness in the case is a former law partner or associate and served in the case while the judge was with the firm.

3E(1)(c). The judge or a member of his household has a pecuniary interest.

3E(1)(d).  The judge or a member of his family is a party or is an officer, will be a witness.

You should read the Canons themselves for the exact language. A link to them is here.

There is a presumption that all judges sworn to administer impartial justice are qualified and unbiased. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1141-42 (Miss. 2002); Miss. Code Judicial Conduct Canon 3E commentary. The burden is on the party seeking recusal to file a motion detailing the factual basis relied on, and to create a reasonable doubt about the presumption of impartiality. Taylor v. State, 789 So.2d 787 (Miss. 2001); Copeland v. Copeland, 904 So.2d 1066, 1071 (Miss. 2004). There must be a reasonable basis to form a conclusion that there was a question of impartiality. Faerber v. Faerber, 13 So.3d 853, 865-66 (Miss. Ct. App. 2009). Mere speculation is not enough. Pearson v. Browning, 200 So.3d 1080, 1085 (Miss. Ct. App. 2016), citing Dillard’s, Inc. v. Scott, 908 So.2d 93, 98 (Miss. 2005) (quoting Code of Judicial Conduct, Canon 3(E)(1)).

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